Thursday, January 04, 2007

I listened to this podcast over a month ago so I don't remember all the details, but it was so good I plan on listening to it again. I'm posting it here so you'll know about it. I'll post some thoughts about it after I listen to it again.

12 comments:

This is kind of a thread-jack, but there are many who argue that judicial activism is in no way limited to "liberal" judges. Reading a statute (say, for instance, the ESA or any number of environmental acts) more narrowly than the text should reasonably be read [if one accepts a textualist philosophy] is just as much "judicial activism" as stretching a statute to cover things the text will not bear. Conservative judges are certainly not immune to adjudicating with the end result or effect in mind.

The "title" of the post links to the podcast. With this blog layout I don't know how to make actual titles. It's weird.

I'm not so sure I would compare Bolick's philosophy with Breyer's, other than to distinguish them. While they both are proponents of "judicial activism" they have different definitions of it and opposite reasons for it:

As I understand their positions, Bolick believes judges should be more activist in striking down laws that clash with the original meaning of the Constitution (i.e., courts should interpret "public use" as it was originally intended [otherwise the Constitution should be amended by the amendment process to change the meaning] and strike down laws that go against that original meaning [as he advocated in Kelo]; and courts should be activist in striking down laws that are economically protectionist and violate the commerce clause;

while Breyer would advocate judicial activism in interpreting the Constitution so as to maximize the justice of the results (I'm probably mischaracterizing it here -- I've only just started reading Active Liberty. Marc, feel free to clarify).

That's probably what you meant by "echoes..." but I just wanted to hear myself talk. But in the end, I think they probably don't agree on much.

What makes you say Scalia would hate Bolick? Has Scalia written anything about Lochner?

Wow. I think that is a miscarriage of Breyer's views :P I don't think he would claim to support "judicial activism" in any way. Bolick's definition is very specialized and should be used with care.

The reason I said his interpretive approach echoed Breyer's in some ways is this, Breyer argues that judges can undercut the democratic system the Constitution's Framers envisioned if they hold too literally to legal text and disregard the "real world" consequences of the decisions they render. So, for instance, while Scalia voted for striking down campaign finance laws as a restriction on free speech, Breyer voted to uphold them laws on the theory that the laws actually supported constitutional values (as the marketplace of free ideas) by limiting the ability of monied factions to overwhelm other points of view.

This sort of interpretive philosophy, in my view, has a lot in common with what Bolick is arguing. He basically seems to want the court to consider similar constitutional values (protecting against the tyranny of the majority, etc,) when making its decision. I never intended to imply that Bolick and Breyer's philosophies were the exactly the same, certainly in many cases their philosophies lead to different results. But, for instance, Breyer was in the 5-4 majority in the interstate wine shipment case that Bolick argued and I believe it is because of the similarities that I'm pointing to in their philosophies.

As for Scalia's views on Lochner, he talks about it in his book A Matter of Interpretation and labels it one of the past excesses of the Court and claims it is unsupported by the Constitution.

I still don’t see the similarities between Bolick and Breyer (again, I haven’t read Active Liberty yet, so I’m not totally familiar with his ideas). Bolick’s philosophy is rooted in the language of the Constitution itself (see his Kelo argument) while Breyer seems to want to disregard (apparently -- to him) less important provisions of the Constitution for his preference of “encouraging democracy”. How does Breyer account for the fact that the founders were leery of democracy and intentionally made the 1789 Constitution less democratic than the previous constitution? According to you Marc “Breyer argues that judges can undercut the democratic system the Constitution's Framers envisioned if they hold too literally to legal text and disregard the ‘real world’ consequences of the decisions they render.” Again, what is this “democratic system” that the framers supposedly envisioned? And, such as in the campaign finance example, why should Breyer’s vision of it be given precedence over the language of the Constitution: “Congress shall make no law… abridging the freedom of speech”?

To sum up: I find it curious that Breyer would want to encourage democracy through his judicial decisions when the nature of the Constitution is itself not very democratic.

I very much disagree and, as I said before, I think you do an injustice to Breyer's philosophy. I don't think it's fair to simply brush it off as not being rooted in the language of the Constitution. I think Breyer’s ideas about the idea of “active liberty” are actually quite compelling. I think you fundamentally misunderstand just what he means by it, but we can talk more about that after you’ve read the book.

I think you need to approach the idea of Constitutional interpretation with a little more humility. The same accusations you lob at Breyer (e.g., that he wants to “disregard… less important provisions of the Constitution” could be leveled at every other Justice). There are no “pure” interpretative approaches (and I personally disagree with the notion that, even acknowledging this, that textualism is the best available). Ideas of originalism, textualism, strict constructionism are not without their own interpretative problems. Nor is it clear that they were the preferred method of interpretation favored by our founders (it fact, the most ardent orginalists argue that there should be no judicial interpretation at all). Post-modern philosophers would have a field day with the idea that we can somehow divorce ourselves from 220 years meaning that has been added to our language, our culture, and to our history and retrieve a meaning from 1786.

Unwittingly, I think you end your argument by proving my point for me. The idea that money somehow equals speech would have seemed especially foreign to the founders. Scalia, in A Matter of Interpretation, acknowledges this. He admits that much of our modern concept of speech is not necessarily “original,” but he accepts this non-original interpretation because it has been so widely accepted and is, in some senses, rooted now in tradition and history.

I’ve re-listened to portions of Bolick’s interview and I maintain my original position. There are similarities in the interpretive philosophies of Bolick and Breyer. Like I said, certainly they have their differences, some of them stark. But in cases like the interstate wine shipment case I referred to before, I think the reason Breyer joined the 5-4 majority in favor of Bolick’s arguments is precisely because of the similarities they do share.

Marc, you're right, I shouldn't comment on Breyer's judicial philosophy without knowing much about it. As I read the book, though, I'll be paying attention to the idea of not holding too literally to the text of the Constitution in pursuit of democracy -- I'm somewhat astounded by it.

Should I really take you to be arguing that there is not such a think as taking something TOO literally? Are laws that prevent incitement or restrict me from talking about guns at the airport unconstitutional? What about yelling "fire" in a theater? There certainly is danger in an over-literal approach. Moreover, when there is ambiguity about just what a passage "literally" meant back in 1786 (as most textualists insist is what is important), then you have to pull in interpretive tools to aid you in your analysis. Scalia certainly has a bag full of them (e.g., erring on the side of federalism, his clear statement rules, etc.). The idea of "active liberty" is simply one of Breyer's tools, and, in my mind, it isn't as objectionable as you seem to paint it. Breyer, as I understand him, leans toward interpreting provisions of the Constitution through the lens encouraging democratic participation. Regardless of how you've characterized it, I see that as a very defensible interpretive approach.